Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCStruck OutNot stated in judgment· [2018] KEELRC 1815 (KLR)

Ephraim Gachigua Mwangi v Teachers Service Commission & Board of Management Thogoto Teachers College [2018] KEELRC 1815 (KLR)

Employment and Labour Relations Court
10 April 2018
NMNzioki wa Makau
927 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court struck out a teacher's demotion claim because it was filed years too late, confirming no extensions are allowed under Section 90.

What this practically means

#

Executive summary

#
The Respondents raised a preliminary objection that the Claimant's suit challenging his re-deployment from principal to classroom teacher on 7th January 2013 was statutorily time barred under Section 90 of the Employment Act No. 11 of 2007, depriving the court of jurisdiction. The Claimant filed no grounds or affidavit in opposition but argued in submissions that the demotion was a continuing injury, relying on Dorothy Nchabira Bernard v Solution Sacco Limited and Gitau Harrison Joshua v Teachers Service Commission & Another. The court applied the Mukisa Biscuits test, holding that a plea of limitation is a proper preliminary objection. It construed Section 90, which requires suits arising from the Employment Act or a contract of service to be filed within three years of the act complained of, or within twelve months of cessation where there is a continuing injury. The court held that the demotion was a finite incident: the fact that its effects reverberate to date does not convert it into a continuing injury, by parity with the position of a dismissed employee. Limitation therefore began to run on 7th January 2013, giving the Claimant until 7th January 2016; having filed on 13th June 2017, he was out of time. Following David Ngugi Waweru v Attorney General & Another, the court held there is no room to extend time under Section 90. The suit was struck out with costs to the Respondent. Note: the judgment does not state the case number or the parties' full names beyond the Respondents' designation.

Key legal issues

#
01

Whether the demotion amounts to a continuing injury under Section 90 of the Employment Act

Holding

The demotion was a finite incident occurring on 7th January 2013; the continuing effects do not convert it into a continuing injury, so limitation began to run on that date

Reasoning

Section 90 caps limitation for continuing injury or damage at twelve months from cessation thereof. The court reasoned by parity with dismissal: continuing economic hardship or damage to social standing does not make dismissal a continuing wrong. The wrong complained of was contained in the letter of re-deployment dated 7th January 2013, and the cause of action arose then.

p. 2
02

Whether the suit is time barred and whether the court can extend time under Section 90

Holding

The suit filed on 13th June 2017 was out of time (the Claimant had until 7th January 2016) and time cannot be extended under Section 90 of the Employment Act

Reasoning

Section 90 requires suits arising out of the Employment Act or a contract of service to be commenced within three years of the act complained of. Following the Court of Appeal in David Ngugi Waweru v Attorney General & Another and Divecon v Samani, there is no jurisdiction to extend time under Section 90. The suit was therefore hopelessly out of time and was struck out with costs.

p. 3
03

Whether the objection qualifies as a proper preliminary objection

Holding

A plea of limitation is a pure point of law and fits within the Mukisa Biscuits definition of a preliminary objection

Reasoning

Applying Mukisa Biscuits Ltd v West End Distributors Ltd, a preliminary objection is a point of law pleaded or arising by clear implication from the pleadings which may dispose of the suit, and cannot be raised where facts must be ascertained. The objection on jurisdiction and limitation fits squarely within the examples given in that case.

p. 2

Legal principles established

#
  • A demotion is a finite incident; its continuing effects do not make it a continuing injury under Section 90 of the Employment Act, so limitation runs from the date of the demotion
  • There is no jurisdiction to extend time for suits barred by Section 90 of the Employment Act

Court orders

#
  1. 1.The suit is struck out with costs to the Respondent

Authorities

#

Legislation

  • Employment ActSection 90
  • Limitation of Actions ActSection 4(1)

Cases cited (5)

  • Divecon v Samani
    [1995-1998] 1 EA 48
  • Dorothy Nchabira Bernard v Solution Sacco Limited
    [2015] eKLR
  • Gitau Harrison Joshua v Teachers Service Commission & Another
    [2014] eKLR
  • Mukisa Biscuits Ltd v West End Distributors Ltd
    (1969) EA 696
  • David Ngugi Waweru v Attorney General & Another
    [2017] eKLR
Jurisdiction invoked
Jurisdiction under the Employment Act; objection that the court lacks jurisdiction because the claim offends Section 90 of the Employment Act No. 11 of 2007 (limitation of actions in labour matters)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (13)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Ephraim Gachigua Mwangi v Teachers Service Commission & Board of Management Thogoto Teachers College [2018] KEELRC 1815 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1815/eng@2018-04-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.